Between Law and Social Norms: The Evolution of Global Governance

21 Pages Posted: 19 May 2009

See all articles by Gralf-Peter Calliess

Gralf-Peter Calliess

University of Bremen - Faculty of Law

Moritz Renner

University of Mannheim - Faculty of Law

Abstract

It is commonplace that economic globalization poses new challenges to legal theory. But instead of responding to these challenges, legal scholars often get caught up in heated yet purely abstract discussions of positivist and legal pluralist conceptions of the law. Meanwhile, economics-based theories such as “Law and Social Norms” have much less difficulty in analysing the newly arising forms of private and hybrid “governance without government” from a functional perspective. While legal theory has much to learn from these approaches, we argue that they fail in one crucial point: They cannot uphold the analytical distinction between law and non-law. The reasons for this shortcoming are theory-immanent in that the economic theories' focus on efficiency and their actor-based perspective are necessarily blind to “law's own rationality.” We therefore propose to further develop those functional approaches to the study of global governance by complementing them with elements from Niklas Luhmann's systems theory of law. This will provide us with a conceptual framework for analyzing the workings of global governance regimes without ignoring their potential for “legalisation” and “constitutionalisation.” As we will show in three concrete examples (Corporate Social Responsibility, lex mercatoria, and internet regulation) we can thus describe the evolution of new forms of legal regulation beyond the nation-state. This will also allow us to draw some preliminary conclusions on the role of law in the context of globalization and, at the same time, show the direction for further empirical research.

Suggested Citation

Calliess, Gralf-Peter and Renner, Moritz, Between Law and Social Norms: The Evolution of Global Governance. Ratio Juris, Vol. 22, Issue 2, pp. 260-280, June 2009. Available at SSRN: https://ssrn.com/abstract=1404160 or http://dx.doi.org/10.1111/j.1467-9337.2009.00424.x

Gralf-Peter Calliess (Contact Author)

University of Bremen - Faculty of Law ( email )

Universitaet Bremen
Fachbereich Rechtswissenschaft
D - 28353 Bremen
Germany
+49-421-218-66207 (Phone)
+49-421-218-66212 (Fax)

HOME PAGE: http://www.handelsrecht.uni-bremen.de/

Moritz Renner

University of Mannheim - Faculty of Law ( email )

68131 Mannheim
Germany

HOME PAGE: http://www.jura.uni-mannheim.de/renner

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